Ab.Rehman Bhat vs Ali Mohd.Manroo

1 Ali Mohammad Manroo filed a suit for recovery of possession and injunction in respect of land measuring 14 marlas in survey No. 177 and 10

marlas in S. No. 179 situated at Barzulla, on the ground that the said plaintiff has been in possession of this land for more than two decades and

has been dispossessed during the pendency of an earlier suit for permanent and prohibrtlry injunction (with alternate relief sought to injunct the

defendants from interfering with plaintiffs easementary rights over the land) In the earlier suit, the trial court declined to issue an adinterim injunction

on an application and against that order plaintiff filed an appeal, which came to be dismissed by 3rd Add! District Judge Srinagar. The order of the

trial court dt. 12.3 97 (1st. Addl. Munsiff) rejecting the prayer for adinterim injunction and the order of the appellate court dt. 1.5.97 (3rd Addl.

District Judge Srinagar) dismissing the appeal, were subjected to revision filed by the plaintiff before the High Court. The revision has been also

dismissed. The plaintiffs further case is that during the revision proceedings before High court (revision file 23 of 1995), the High court on 6.5.97

issued notices and sent for the record and directed parties to maintain status quo on spot as on that day and date and thereafter on 8.5:91

defendants are alleged to have dispossessed the plaintiff from suit land, after colliding with each other by use of muscle power. After dipossession,

plaintiff approached C, J.M Srinagar for directing the concerned police to implement the order dt. 6.5.97 of the High court. The C.J.M directed

the SHO p/s Sadder to maintain Status quo as ordered by High court spot and to restrain the violation of the order. It appears from para 12 of the

plaint, that a complaint of tampering with the High court order dt, 6.5.97, is pending in the High court and enquiry is on for ascerting the truth and

genuiness or otherwise of the complaint. The plaintiff also approached the administrator. Muncipality in respect of encroachment of defendants'

upon plaintiffs land and their act of undertaking construction on spot in contravention of provisions of Muncipal Act. Though, the complaint was

marked towards Officer he failed to take any action As no action (s) was taken by police and the municipality, the plaintiff approached the High

court through the medium of CMP No. 55/97 praying for attachment of the suit/land and detaining of the defendants in Civil prison for violating the

Status quo order dt. 6,5.97. Alongside plaintiff also prayed for appointment of commissioner for spot inspection, The matter came up before the

High court on 31.5.97 and the following order was passed

... This court on 6 5 97 has directed 'the parties to maintain status quo on spot as it exists today Mr. Malik Submits that the order of the court has

been violated by the respondents and he has moved this application for attachment of the property. Before objections are considered by the court,

the SHO Incharge P/S Sadder, is directed to implement the order of the court dated 6.5.97 maintaining status quo on the spot. The learned

counsel for the petitioner submits that the commissioner be also appointed and directed to inspect the spot and report with regard to the factual

position. The Deputy Registrar, of this wing of the court is directed to go on spot and report about the factual position. His fee is assessed at Rs.

1000 which shall be paid by the petitioner. Transport and conveyance be also arranged by the petitioner for the Commissioner

The Dy, Registrar made local inspection but plaintiff is not having copy of his report The plaintiff has been virtually dispossessed from suit land

and his right of ingress and egress over the land has been blocked by the raised brick wall of defendants. Plaintiff is accordingly invoking the

provisions of section 9 of the Specific Relief Act, for recovery of possession, through medium of this suit."" The plaintiff accordingly has prayed for

decree for recovery of possession of suit land measuring 1 kanal 4 marlas against the defendants and for mandatory injunction commanding

defendants to demolish the raised wall

Coextensive with the suit, plaintiff moved an application for interim injunction on same set of facts and further claiming prima facie case and

balance of convenience in his favour. Besides praying that the justice require that the nature and character of the suit property should not change

and no construction should be raised on the land and the wall raised on the land should be demolished.

The defendants have filed written statement in the suit and also the objections.

The trial court of Add). District and Sessions Judge, after hearing the parties allowed the application for interim relief and by temporary

injunction restrained the defendants from chafing the nature and character of the suit land or from raising any construction thereon pending suit. This

order of 31101997 is challenged before the High Court.

Defendants 1 to 7 have challenged the order of the trial court before this court on various grounds. The plaintiff/respondent No. 1 has failed to

get an injunction in the earlier suit. Notwithstanding that plaintiffs claim for possession and injunction has been turned down by the trial court,

appellate court and Revisional court (High court) he stilt filed a fresh suit and managed to obtain an interim injunction, after abandoning the earlier

suit. This fresh suit has been filed, during pendency of the revision (before this court) against the orders of Trial court and appellate court in the

earlier suit, whereunder the adinterim injunction had been declined. No cause of action has deemed to respondents to file the suit against the

appellants and respondents 2 to 4. The trial court of Addl. District Judge placed reliance on report of Commissioner who was appointed by the

court of 1st. Addl. Munsiff in the earlier suit, despite the fact that the said court of 1st. Addl. Munsiff Srinagar did not place any reliance on this

report. While disposing of the interim injunction application, the trial court of 1st. Addl. Munsiff Srinagar declined the injunction, even Munsiff

Srinagar declined the injunction, even though said commissioner report was before that court, which order of the trial court was affirmed in appeal

by 3rd Addl. District Judge Srinagar. The impugned order suffers from nonapplication of mind. The court could not have passed impugned order

against the true owner and moreso when the petitioner has not been dispossessed at any point of time. The possession has been throughout with

appellants. The court should have taken into consideration, the earlier proceedings, the orders passed by trial court, appellate court and revisional

court. By the injunction the trial court has restrained true owner from exercising his right's over the land. Though, the granting of injunction is a

matter of discretion, but all the same the court is to find out if any right of the person seeking injunction has been violated. Being title holders of the

property and in possession and enjoyment of the suit land, rights of the appellant the true owner cannot be defeated by respondent No 1, who is

neither in possession nor, in occupation of the land, nor has he any right over the land.

The counsel for the respondent No.1 submits that the appeal is not competent against the impugned order, in so far as the suit is instituted for

recovery of prossession under section 9 of the J&K Snecific Relief Act. Section 9 of the said Act, engrafts a bar to appeal, against any order or

decree passed in any suit, instituted under section 9 of the Specific Relief Act. It also merits to be noticed that even review against any such order

or decree is also barred under the section. There is no right of appeal independent of the staturory provisions. When section 9 of the said Act itself

negates appeal or review against any order or decree passed in a suit under said section the appeal or review is incompetent.

The counsel for respondents confronted with this express provision of section 9 of the Specific Relief Act, submits and has moved a motion

(CMP 29/98} that the appeal may be treated as revision. The appeal is sought to be treated as revision on the ground that if the order impugned is

allowed to operate, it will cause gross injustice and lead to abuse of due process of law. It is necessary to rectify the wrong committed by the court

below and expedient in the interest of justice and equity, to treat the appeal as revision in so far as court below has exercised its jurisdiction illegally

and with material irregularity

The counsel for respondent opposes the prayer of treating the appeal as revision and even objections in the formal memo are placed on record.

The objection raised is that since the impugned order is not appealable, therefore/the appeal cannot be converted into revision the only remedy

available to petitioner is to file suit. Even if the order is perverse and based on wrong assumptions, it cannot be interfered with by the High court in

revision No jurisdiction at error or material irregularity is committed by the court while passing the impugned order.

I have considered the respective submissions of the counsel for the parties.

Section 9 of the Specific Relief Act provides that if a person is dispossessed of immovable property without his consent and not in due course

of law, such person or any other person claiming through him may bring a suit for recovery of possession of such immovable property,

notwithstanding the title which may be set up in such suit. The section further provides that any person can bring a suit to establish his title to such

immovable property and to recover possession there of, notwithstanding the said simpliciter suit for recovery of possession of the property, It will

be seen that under section 9 of the Specific Relief Act a person formerly in possession of immovable property, if dispossessed without his consent,

otherwise than in accordance with law can bring a suit, to recover possession and the question of title is not tried in such a suit Section 9 of the

Specific Relief Act further inter alia provides that no appeal shall lie from any order or decree passed in any suit for recovery of possession of

immovable property under the section. The section also places an embargo on powers of review where such order or decree is passed under this

section. The provisions of section 9 forbid appeal or review of the order or decree under this section in absolute terms The reasons for such a bar

are not far off to comprehended However for our present purposes, it would suffice to say that the provisions under the section are comprehensive

and explicit enough to include every decision and order made under the section. The adinterim injunction order passed under 0.39 R 1 ad2 of

CPC in the suit laid under section 9 of Specific Relief Act., is decision of the court not amounting to decree on an interim issue raised in the suit.

The order having trappings of a decision made during progress of the case, without finally disposing of main issue or issues in the case, is very

much an order passed in the suit covered by section 9 of the S.R Act.

The question then is whether incompetent appeal filed can be treated as revision. The counsel for respondent No 1 submits that revision

petition is not permissible as there is no appeal provided against the impugned order. He has cited AIR 1998 SC 424 in respect of his submission

that section 9 bars an appeal and revision against any order passed by court under section 6 of the S.R Act 1963 as applicable to the other parts

of the country. A plain reading of section 9 of the J&K Specific Relief Act 1977 would reveal that the section bars an appeal or review of any

order or decree in the suit instituted under this section.

The section no where bars revision against any such order or decree. The revision is wholly quite distinct concept than an appeal or review the

observations of their lordship of Supreme Court are obiter. The observations appears as obiterdicta as opposed to ratio decidendi It cannot be

said that any bar of Revision is laid as statutory enactment, when the bar of appeal or review alone is expressly engrafted by section 9 of the

Specific Relief Act. The observations of Hon'ble Supreme court on the legal question, whether revision is competent against an order under 0.39

CPC in a suit u/s 9 of the Specific Relief Act, suggested before the Apex court, is not arising in such a manner as to require decision of the Apex

court thereto.

Infact their lordship in the case against the judgement of Bombay High court were considering the question whether a statutory provision

barring an appeal or revision can exclude the powers of appeal or revision to the High court which it has under the constitutional powers and Letter

patent (paramount charter) under which the High court functions. Their lordships on analysis the provisions of law, laid down that bar of appeal

under section 6 of the Specific Relief Act cannot be invoked when appeal is filed under clause 12 of the Letters patent against the order of decree

under sec. 6 of Specific Relief Act passed by Single Judge of the High court. On express and unambiguous of section 9 of the State Specific Relief

Act the section does not bar the remedy to an aggrieved party by way of revision as it does in case of appeal or review. As a matter of law,

revision under section 115 CPC from any decree or order under the section passed by any subordinate court can lie to the High court. Though, as

a matter of practice, the courts refrain and refuse to exercise their discretionary powers of revision, yet in cases of exceptional nature where grave

injustice can result, the courts have exercised the revisional powers. It cannot be said that even in cases where gross abuse of jurisdiction or

material irregularity is committed while passing a judicial order, the High Court cannot exercise the revisional powers under paramount law (Sec

104 of Constitution of J&K) and enabling other statutory provisions. In 1995 (3) SC0191, cited by counsel for the respondent No. 1; while

holding that appeal is incompetent against the interlocutory order passed under 039 R1 of CPC in a suit under section 6 of the Specific Relief Act

as applicable to Orissa, the High court the order of the District Judge treating the appeal, though not maintainable under section, as revision to be

considered on its own merit, undisturbed.

Having regard to the exceptional circumstances and factsituation of this case, gross jurisdictions! error and exercise of jurisdiction with material

irregularity, for the reasons to follow hereafter, the appeal stands converted and is treated as revision. The CMP 29 of 98 is allowed. In its

discretion this court finds it a definite case, where expediency of justice wants interference in exercise of [(c)visional jurisdiction of this court. The

case be dairised and registered as Civil Revision, after it is delected as an appeal.

By the impugned order dt. 31.10.1997, the trial court of Add). District Judge Srinagar has issued an order of temporary injunction restraining

defendants 1 to 9, appellants/Rev. Petitioners and respondents (other than respondent No 1 before this court) from changing the nature and

character of the suit land or from raising any construction thereon pending disposal of the suit. This order as per the observations of the Ld. Judge

is based on the commissioner's report dt 12.2.1997 submitted in the court of 1st. Addl. Munsiff Srinagar after the commissioner was appointed by

the said 1st Addl. Munsiff Court Srinagar for spot inspection/focalinvestigation in title suit other than the suit instituted u/s of Specific Relief Act

before the Id. Addl. District Judge Sgr. In fact commissioner has been appointed by 1st. Addl. Munsiff in Civil Original suit No. 243/97 The Addl.

District Judge has interpreted, this commissioner's report filed in parallel proceedings before the other court to reveal, as if respondent No.1 was in

possession of this land. Besides the said court noted, that no inherent defect was pointed out to it in the commissioner's report. The trial court has

thereafter further presumed that the plaintiff was forcibly dispossessed from the suit land on 8.5.1997, after the order of the High Court in revision

dismissing revision against order of* Add!. District Judge Srinagar confirming in appeal the order of 1st. Addl. Munsiff Srinagar, declining

injunction (in terms as sought in the present suit).

It is pertinent to note that the commissioner's report dt. 12.2.1997, so heavily relied on by the trial court of Addl. District Judge Srinagar, has

been considered by (he court of 1st. Addl. Munsiff where the report was filed alongwith other material and documents on record while deciding

the question of granting or declining the injunction the injunction and interlocutory relief in terms as sought second time from the court of Addl.

District Judge Srinagar. The 1st. Addl. Munsiff in his order dt. 12.3.97, while considering the weight and value of this commissioner's report has

found that the documents produced before that court indicate that the suit property has been in possession of the defendants and the suit property

has not been in possession of the plaintiff (respondent No.1 before this court). Even the trial court of 1st. Addl. Munsiff Sgr has further found on

perusal of the report of the commissioner in question that the possession of the land has not been surrendered at any time by the defendants. The

court also consider whether the plaintiff to that suit before 1st. Addl. Munsiff and as also plaintiff to his suit before trial court of Addl. District Judge

Sgr was in possession of the suit land. The trial court of 1st. Addl. Munsiff found that on consideration of the matter, plaintiff has not been able to

make out even primafacie case to warrant issuance of interim injunction. It is equally important to note that in this suit before the 1st. Addl. Munsiff

besides other reliefs at interiocatory stage, the plaintiff sought an injunction to restrian the defendants from undertaking any constructional activities

or filling work on the suit land and not to cause any interference with possession of the applicant over the suit land. The trial court of 1st, Addl.

Munsiff Sgr on consideration of the whole matter, documents and this commissioner's report rejected the application for grant of interim injunction.

Against this order, appeal was filed. Legality of this order was examined in appeal by 3rd Addl. District Judge Srinagar. The 3rd. Addl. District

Judge also found and returned a finding adverse to the plaintiff on the claim of factum of possession over the subject of the suit and on ultimate

analysis dismissed the appeal, after upholding the order of trial court of refusing to issue an injunction, as in order, valid and legal. The plaintiff

before the trial court and respondent No.1 before this court carried the matter to High court in revision. The High court vide order dt. 2.9.97 in

civil revision 23 of 1997 did not find the order to suffer from any ""Procedural or jurisdictional error"". The revision was dismissed on merits on

27.8.97.

In view of these primafacie tellings and selfspeaking facts and circumstances, the trial court was not right to rely on the report of the

commissioner, which had been analysed and given due weight in the proceedings of earlier suit and its interim injunction matter, inter se the parties

on the very subject of the suit, moreso, when it was pronounced upon by different judicial forums. This report filed in a suit on board 1st. Addl.

Munsiff court sgr. could not have been adopted mechanically in its present form by the Addl. District Judge to find and base primafacie case for

adinterim relief. Even commissioner's report is available merely to assist the court for the limited purposes of appreciating the other evidence and

may be the documents at the interim stage with reference to what the commissioner saw on spot when the inspected the site subject of suit. The

commissioner's report can hardly serve as evidence to prove possession and that too at initial stage of the proceedings and more so when this

report was adversely commented upon on consideration by the 1st. Addl. Munsiff s court Srinagar, while declining interim injunction in the suit and

miscellenous proceedings before that court.

The contention of the trial court Judge that as no inherent defect was shown to him, therefore, the report court be relied on is wholly a

misplaced propostion in the above referred factsituation and given circumstances of the case. The commissioner's report can be evidenced in the

case in which the commissioner has been appointed and the report submitted and placed on record, of course in accordance with the procedure as

provided by Order 26 of CPC. But how can such a report be even primafacie evidence in a different suit, notwithstanding that the earlier suit is

inter se the same parties and relates to the very land, subject matter of both the suits. The commissioner's report could have been brought on

record in these parallel proceedings before the Additional District Judge Srinagar only when the report was tendered formally in evidence and

admitted by the court. Reliance on such commissioner's report, which even the court of 1st. Addl. Munsiff, where the commissioner was appointed

and the report was submitted has not found reliable and in conjunction with other documents and evidence before that court, even prima facie

strong enough to sustain relief of interim injunction in that suit before the said court, is material irregularity and grave jurisdiction error. The Add.).

District Judge has obviously committed material irregularity and acted illegally in exercise of its jurisdiction while granting the interim injunction after

passing the order on the said commissioner's report. The trial court has concluded that the plaintiff before that court and respondent No.1 before

this court has been forcibly dispossessed from suit land on 8.5.98, on mere allegation of the plaintiff to that end. The trial court has failed to

consider the matter of sought interlocutory injunction and alleged pendenlit dispossession in the totality of facts and circumstances appearing on

record. The matter has not been viewed in the context of earlier (pending) suit between the parties. All and material post illigative development

have not been reckoned with.

In the main suit, the plaintiff's case is that after the High court passed order requiring the parties to maintain status quo on spot as it existed on

6.5.97, the plaintiff was dispossessed by the defendants on 8.5.97. The Trial court has not enquired whether dispossession of plaintiff is a fact or

not. This is all the more important as the courts below 1st. Add.). Munsiff, Srinagar and also the appellate court of 3rd. Addl. District Judge,

Srinagar, primafacie found plaintiff out of possession and that the revision against the order of the appellate court of 3rd Addl. District Judge sgr

was dismissed by the High court. Not only so, the courts below and refused to issue injunction which in terms was sought in the like terms as

before the trial court. This aspect of the matter could not have been lost sight of while attempting to find even prima facie, if the plaintiff has been in

fact dispossessed during the pendency of the legal proceedings between the parties, in which the plaintiff did not succeed at the interim stage, qua

obtaining of the relief of adinterim injuction. The averments of plaintiff having approached the CJM Srinagar and police for implementation of the

status quo order.

6.5.97 in the Civil Revision 23 of 1997, are all maters which may have a bearing on the question of dispossession, when cumulatively

considered alongwith the whole record including documents. The question of alleged dispossession during pendency of the earlier suit proceedings

in the face of stout denial, is even prima facie a matter of some evidence, documents and legal material available on record. Even contextually the

consideration of report of commissioner appointed by the High court on 31.5.97, after being formally admitted on record, has material bearing on

the question of alleged dispossession of plaintiff, and on the issue of issuance or declining to issue interim injunction. However this pertinent report

has not been considered for one or other reason. The whole approach of the trial court is based on miscomprehension of the legal and factual

position of the case. It appears to be a case of misplacement of judgement. The interference by this court, seen as above, is expedient in the

exceptional nature of the case. The court below has exercised jurisdiction illegally. The failure of justice is writ large on record. The exercise of

jurisdiction with material irregularity has led to grave abuse of due process and procedure.

In these circumstances, interference in the opinion of this court, is justified and the court is under legal duty to exercise the revisional powers.

With the result, and for the aforesaid reasons the impugned order dt. 31.10.1997 is set aside. The trial court is free to pass proper orders on

the question of interim injunction in accordance with the provisions of law.